Supremely Opaque?: Accountability, Transparency, and Presidential Supremacy
omas Journal of Law and Public Policy
Supremely Opaque?: Accountability, Transparency, and Presidential Supremacy
Heidi Kitrosser 0
0 Follow this and additional works at:
SUPREMACY
HEIDI KITROSSER*
INTRODUCTION
From the beginning, it sounded too good to be true. Like a modem-day
inventor announcing that she has constructed the world's safest, most
environmentally sound, yet fastest and most powerful mode of
transportation, the Constitution's Framers boasted that they had crafted a
presidency both deeply efficacious and unthreatening to liberty. What is
more, the Framers explained that a single ingredient, when added to the
Constitution's other structural elements, would facilitate both qualities.
That ingredient was unity, whereby one person, not a multi-member body,
would serve as President, and the presidency would have no constitutionally
annexed council. Unity, promised the Framers and other founding era
constitutional proponents, would create "energy" and accountability. With
respect to the former, Alexander Hamilton stated in the Federalist that
"[u]nity is conducive to energy" because "[d]ecision, activity, secrecy, and
dispatch will generally characterize the proceedings of one man in a much
more eminent degree than the proceedings of any greater number . . ,"
With respect to the latter, Hamilton assured fellow Founders in the very
same essay that unity would also conduce to accountability. He explained
that "multiplication of the executive adds to the difficulty of detection,"
including the "opportunity of discovering [misconduct] with facility and
clearness." One person "will be more narrowly watched and most readily
Associate Professor and Vance K. Opperman Research Scholar, University of Minnesota Law
School. For their thoughtful comments, I am very grateful to David Dana, Kurt Lash, Larry
Solum, the students and faculty who attended my presentation at the Constitutional Law
Colloquium at the University of Illinois Law School, the organizers and attendees of the St.
Thomas Journal of Law & Public Policy symposium, "Presidential Powers: Prudence or
Perversion?", and participants in a faculty workshop at the University of California, Irvine. I am
also very grateful for the valuable comments of my research assistants Meghan Heesch and Justin
Rhodes and for Justin Rhodes' fine bluebooking work.
1. THE FEDERALIST No. 70, at 422-23 (Clinton Rossiter ed., 2003).
suspected."2 This assurance-that the new presidency's structure would
support both energy and accountability-was echoed throughout the
framing and ratification debates.3
Of course, unity by itself could not achieve all of these benefits. To
differentiate the new President from a monarch, the Founders explained that
unity would combine with other structural innovations-including
presidential election, impeachment, Congress' power to declare war, and
the Senate's shared role in the appointment and treaty processes-to
balance energy and accountability.4 Perhaps the most delicate mechanisms
in this promised structure were those to control information. A key
component of the energy trumpeted by the Founders was secrecy. Yet
founding assurances of presidential accountability assumed transparency. It
is no accident, after all, that Hamilton spoke of accountability as a product
of the executive's being "watched." Other constitutional supporters
similarly assumed transparency when they spoke of unity and
accountability. For example, William Davie, championing ratification in
North Carolina, explained that the Framers' predominant reason for creating
a unitary presidency was:
the more obvious responsibility of one person. It was observed that,
if there were a plurality of persons, and a crime should be
committed, when their conduct was to be examined, it would be
impossible to fix the fact on any one of them, but that the public
were never at a loss when there was but one man.'
Similarly, a constitutional proponent wrote in the Virginia Independent
Chronicle that "secrecy and dispatch" will attach to the unitary presidential
office. Yet the author placed greater emphasis on the fact that "[t]he United
States are the scrutinizing spectators of [the President's] conduct, and he
will, always, be the distinguished object of politicaljealousy."6
How might one reconcile these twin founding promises that Presidents
would act both secretly and transparently? Were the Founders "lying
liars?"7 Were they delusional? Elsewhere, I have argued that the seeming
2. Id at 426-27, 429.
3. See infra note 4.
4. See, e.g., THE FEDERALIST NO. 69 (Alexander Hamilton), supra note 1, at 414-21; 9 THE
DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, RATIFICATION BY THE
STATES, VIRGINIA 1097-98 (statement of Edmund Randolph) (John P. Kaminski & Gaspare J.
Saladino eds., 1990); 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE
CONSTITUTION, RATIFICATION BY THE STATES, PENNSYLVANIA 141 (essay of Tench Coxe)
(Merrill Jensen ed., 1976); id. at 495 (statement f (...truncated)